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A new idea on medical malpractice reform

I meant to write about this the other day, but Peter Orszag's proposal for medical-malpractice reform is pretty clever. As I read it, in fact, it's not primarily a malpractice-reform proposal at all. It's a proposal for spreading evidence-based medicine through a vehicle that conservatives and doctors find congenial.

Quick background here: "Right now, health care is more evidence-free than you might think," Orszag writes. "And even where evidence-based clinical guidelines exist, research suggests that doctors follow them only about half of the time. One estimate suggests that it takes 17 years on average to incorporate new research findings into widespread practice." And that gets to Orszag's broader take on controlling costs in health care: If we can get doctors to stop doing the stuff we don't need, we can control costs without rationing in a way that harms anybody's care.

Of course, defining the stuff we don't need is more difficult than it sounds. And when evidence-based medicine became something Democrats wanted to do, Republicans decided it was something they opposed. Using research to decide what works and what doesn't is rationing, you know.

Orszag sees medical-malpractice reform as a way to get around this debate. Instead of protecting doctors from lawsuits by capping damages or limiting the ability of plaintiffs to sue, you could protect them by charging the American Medical Association or the Institute of Medicine with creating standard lists of best practices and then providing immunity to doctors who can show they followed them. That's easier said than done, but if you could manage it, it would give doctors a reason to follow the best practices and, in theory, drive down overall health-care costs. That would be much more effective than just attacking malpractice suits, which aren't a large contributor to spending and are often quite warranted.

By Ezra Klein  | October 22, 2010; 4:43 PM ET
Categories:  Health Reform  
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Comments

"That's easier said than done"

That's putting it mildly, given that there's a huge industry built around encouraging people to "ask your doctor" about treatments that are far from being evidence-based, or offering carrots and sticks to doctors to push the same. The recent cases addressing not just off-label prescription of psychiatric drugs to children, but tacit marketing of the practice, make Big Pharma look like a bunch of polluters who consider fines and lawsuits settlements as normal business expenses -- and off-label prescriptions are as about as explicit as it gets when it comes to stepping outside best practices.

Posted by: pseudonymousinnc | October 22, 2010 5:07 PM | Report abuse

You know, the best part of this is that doctors will HATE IT. They hate being told what standards their conduct should be held to. It's certainly the reaction their spokespeople have had to the Medicare rule barring compensation for health care made necessary by medical mistakes -- they claim it amounts to the government telling doctors how to provide care. You'll hear the same thing about this, even though Orszag proposes letting the doctors (through the AMA, etc.) come up with the standards themselves.

Posted by: nolo93 | October 22, 2010 5:09 PM | Report abuse

Am i missing something--I didn't click through. How could it possibly be malpractice to provide the clinicaly indicated care based on industry standards, especially if those standards are appropriately developed and scientificaly vetted. In as much as doctors are concerned about medmal they should be pushing for the establishment of these sorts of standards. My guess is that is the devil will be in the details e.g., the rare case which by definition is not really subjectt to standard lists of best practices.

Posted by: sash64 | October 22, 2010 5:41 PM | Report abuse

This Op-Ed proved in my mind that Orzag has no idea what he's talking about.

Numerous medical societies already publish practice guidelines, but they go out of their way to emphasize that every situation is different and the guidelines should not be used for medicolegal purposes.

If Orzag's suggestions were adopted the guidelines would be written in such a way to give doctors as much lattitude as possible--essentially rendering them useless--and in return we would give the doctors liability protection. This would be a terrible deal for the public.

Most doctors want to do the right thing. Better information technology is what's needed to make the latest guidelines more accessible. And, yes, government needs to be involved because the medical profession's own guidelines are too often self-serving.

Posted by: bmull | October 22, 2010 5:41 PM | Report abuse

Wrong, they would love it. This isn't a new idea. Many were touting this from before the reform debate began, ever since CER was approved in the stimulus. What they don't like is Medicare claiming complications that can happen as a never event. As in get a population that has fall and balance issues up as much as possible so they don't get a DVT, but don't let them fall. Don't let them lay in piss and get a bed sore, but don't put in a catheter because they will get an infection. These never events will never be zero. It won't take too many times getting stiffed for issues out of their control for them to wonder why they take medicare in the first place.

Posted by: Jenga918 | October 22, 2010 5:56 PM | Report abuse

Didn't the GOP propose malpractice reform a few months ago? Didn't Social-Democrats pooh-pooh the idea, which would strip the party's trial lawyer's association donors of funds?

I could be wrong -- if anyone has access to the Congressional Record, it would be great to check the facts. Perhaps a major newspaper might have researchers on staff who could bird-dog a few phrases from Orszag's "original" opinion.

Posted by: rmgregory | October 22, 2010 6:59 PM | Report abuse

"Of course, defining the stuff we don't need is more difficult than it sounds. And when evidence-based medicine became something Democrats wanted to do, Republicans decided it was something they opposed. Using research to decide what works and what doesn't is rationing, you know."

If it were only about discarding what doesn't work at all, that's not going to find a whole lot of opposition.

I think the worry is related to cost effectiveness measures.

Suppose you have a terminal illness where a treatment which extends your life by 3 months costs $150,000, and suppose palliative care care is expected to cost $30,000. Does the first option get nixed because of the cost? It doesn't even promise to save you after all. Just give you a bit of an extension.

"The issue of expensive cancer drugs has been particularly controversial for NICE, which had rejected Tyverb for use in Britain's National Health Service (NHS) saying it had only limited benefits which were not justified by its high price."

Of course the value of any benefit is subjective - in the UK, treatment benefits are evaluated by healthy bureaucrats, not those who actually might want the drug. I'm sure most of them are well meaning fellows, but their value of the benefits are going to be different from someone with the disease.

http://www.reuters.com/article/idUSTRE69C6M320101013

"Thousands of patients will be condemned to blindness because of a decision to ration the NHS treatment which could save their sight, leading charities warned last night.

They said that patients with macular degeneration, the most common cause of blindness in the elderly, would effectively have to lose the use of an eye before qualifying for therapy to save their remaining vision.

It is the principal cause of irreversible blindness in Britain but the sight of many sufferers can be saved at a cost of around £1,500 per patient if treated early enough."

Well no dear patient, it isn't that expensive but you really only NEED one eye right? Who is paying the bills anyway - you? Haha! And you're probably old anyway, so just be thankful you can still see at all.

http://www.dailymail.co.uk/health/article-122995/You-blind-eye-NHS-treat-you.html

Take a look at this bit from Ezra's link:

"What it creates is a council to coordinate research into which treatments work best, and are most effective for the money. And in fact, the new law states quite specifically that the council has no power to "mandate coverage" and that its recommendations are not to be construed as "clinical guidelines for ... treatment."

"Most effective for the money" - same principle as NICE.

And sure it doesn't have any power now, but another 70 percentage points of health care cost inflation and another political cycle and boom, the law is amended and we have an American NICE. Why even have this council if its recommendations aren't even supposed to be taken as guidelines? It's all about getting a foot in the door.

Posted by: justin84 | October 22, 2010 7:33 PM | Report abuse

"if anyone has access to the Congressional Record, it would be great to check the facts."

Anyone? The Google is your friend. But that's nice smear work there from you.

As Ezra has noted many, many times, malpractice reform needs to be accompanied by a shift towards a system where it's possible to hold people accountable without litigation. Corpo-Republicans like rmgregory like the idea that those who suffer through malpractice should just suck it up. They love the way that insurance companies drag out cases until the plaintiff either runs out of money or dies, but will settle on the courthouse steps just as the verdict is about to come down.

Posted by: pseudonymousinnc | October 22, 2010 9:31 PM | Report abuse

NOT a new idea - see Ronan Avraham's paper in SSRN which will be published soon in AJLM. His version of this idea is quite sophisticated and responds to many of the problems raised above.

Posted by: eunomia | October 22, 2010 10:10 PM | Report abuse

NOT a new idea - see Ronan Avraham's paper in SSRN which will be published soon in AJLM. His version of this idea is quite sophisticated and responds to many of the problems raised above.

Posted by: eunomia | October 22, 2010 10:11 PM | Report abuse

Orszag asserts that his proposals would cause doctors to follow evidence-based clinical guidelines more frequently. This is plausible, but I'd like to see some evidence.

The one malpractice case that I know about involved a cancer patient who died. There are published protocols for treating various types of cancer. The primary reason that the doctor was sued was that she didn't follow the protocol. The doctor diagnosed the cancer incorrectly, so if he had decided to follow the protocol she would have been following the wrong one. Had that occurred, I don't know whether the doctor would have been sued for following the wrong protocol; I'd say the odds are against it. Had the doctor made the correct diagnosis and followed the relevant protocol, she would not have been sued.

Orszag's proposal would not have changed the incentives for the doctor very much. If the doctor had followed the treatment protocol, she could still have been sued over the erroneous diagnosis. I don't think that Orszag's proposal would change that. If she had made a correct diagnosis and followed the protocol, any malpractice suit against her would have been without merit. I don't think that Orszag's proposal would have changed that, either.

One thing that struck me in this case is how inexplicable the doctor's actions were. She was not behaving like a rational actor, or anything close to it. Standard economic theories (which assume people are more or less rational) may not be applicable to people like her.

Posted by: KennethAlmquist | October 23, 2010 12:30 AM | Report abuse

"Didn't the GOP propose malpractice reform a few months ago?"

I have no idea. If a handful of Republicans had really wanted malpractice reform, they could have gotten it included in the health reform bill. For Republicans to propose malpractice reform now, if indeed they have, is fairly meaningless.

Posted by: KennethAlmquist | October 23, 2010 1:09 AM | Report abuse

For those who continue to think malpractice reform will limit health care cost growth or offer anything to patients just look at Texas which had such severe caps there isn't any legal remedy for obvious malpractice.
Medical malpractice reform is pure GOP BS spin which they have a number of reasons to continue to offer it up but it is not anywhere close to offering savings.

Posted by: elemming | October 23, 2010 8:09 AM | Report abuse

This is not a new idea, as others stated. Most physicians don't like it, despite their general (self-interested) approval for tort reform.

It makes sense they don't like it. I don't think Ezra would like a law passed that he couldn't get fired as long as he only wrote articles on standard media tropes like "an anti-incumbent year" or "Obama over-reached."

I admire Orzsag as an economist, but his health care related columns have been poorly thought out and mostly irrelevant, IMHO.

Posted by: CarlosXL | October 23, 2010 10:40 AM | Report abuse

if U.S. based doctors are threatened with set pricing then maybe they'd be forced to conform to this idea. But then when and if this ever comes to pass you'd have to put lawyers at bay as well. Good luck getting Dems to go along with that. As I said before this is a great idea that not only could improve outcomes but also reduce cost which is probably why it has no chance of happening.

Posted by: visionbrkr | October 23, 2010 1:51 PM | Report abuse

Had the doctor made the correct diagnosis and followed the relevant protocol, she would not have been sued."


Wrong. Protocols/guidelines mean nothing in a court of law. There are ACOG guidelines stating that you dont need to do a c-section on a baby with mild variable decels on the heart strip. Yet OB/GYNs get sued all the time for failing to do a c-section on those babies, some of whom end up with cerebral palsy (although that has absolutely nothing to do with variable heart decels on the rhythm strip).

Courts dont consider protocols or guidelines. They rely SOLELY on "hired gun experts" to tell a stupid layperson jury what the standard of practice is. What you end up with is 2 or more dueling experts arguing about what the "standard" is, and studies have shown that independent written guideline/standards have little sway over juries.

What we need is a special health court system. Laypeople are idiots and incapable of discerning whether a doctor who uses keflex to treat a skin infection instead of clindamycin is breaking a standard of care -- they're even more confused when one "expert" tells them that keflex is against the standard whereas the other expert says keflex is fine. Expecting layperson juries to tease out which "expert" is right is a fool's errand.

Get rid of the expert system altogether. These cases should be decided by medical doctors on a rotating panel with no connection to either plaintiff or defendant. They would get paid a flat salary -- as opposed to the current system of paying experts 150k to say whatever the plaintiff/defendant lawyer wants them to say.

A panel of neutral MDs is best suited to decide whether using TPA on a stroke patient with a history of a minor GI bleed is against the standard of care, not John Doe who has never heard of TPA before.

Posted by: platon201 | October 23, 2010 7:18 PM | Report abuse

"Had the doctor made the correct diagnosis and followed the relevant protocol, she would not have been sued."


Wrong. Protocols/guidelines mean nothing in a court of law. There are ACOG guidelines stating that you dont need to do a c-section on a baby with mild variable decels on the heart strip. Yet OB/GYNs get sued all the time for failing to do a c-section on those babies, some of whom end up with cerebral palsy (although that has absolutely nothing to do with variable heart decels on the rhythm strip).

Courts dont consider protocols or guidelines. They rely SOLELY on "hired gun experts" to tell a stupid layperson jury what the standard of practice is. What you end up with is 2 or more dueling experts arguing about what the "standard" is, and studies have shown that independent written guideline/standards have little sway over juries.

What we need is a special health court system. Laypeople are idiots and incapable of discerning whether a doctor who uses keflex to treat a skin infection instead of clindamycin is breaking a standard of care -- they're even more confused when one "expert" tells them that keflex is against the standard whereas the other expert says keflex is fine. Expecting layperson juries to tease out which "expert" is right is a fool's errand.

Get rid of the expert system altogether. These cases should be decided by medical doctors on a rotating panel with no connection to either plaintiff or defendant. They would get paid a flat salary -- as opposed to the current system of paying experts 150k to say whatever the plaintiff/defendant lawyer wants them to say.

A panel of neutral MDs is best suited to decide whether using TPA on a stroke patient with a history of a minor GI bleed is against the standard of care, not John Doe who has never heard of TPA before.

Posted by: platon201 | October 23, 2010 7:19 PM | Report abuse

Bon idee!

Posted by: FastEddieO007 | October 23, 2010 9:26 PM | Report abuse

Let's see if this works with Medicaid, Medicare, and Obamacare patients!

Posted by: bgmma50 | October 24, 2010 3:51 PM | Report abuse

I read an article yesterday that 90% of medical research is unverified. The problem is that researchers ARE NOT trying to fugure out how to make people healthier. THEIR GOAL is to invent a NEW DRUG. They (unlike wholistic healers) never CONSIDER THE CAUSE of an illness, which, if eliminated, is the CURE. They also went off track when they decided to use rats instead of guinea pigs in research. Guinea pigs, humans, primates & a fruit bat are the only species who do not make their own Vitamin C when needed. BIG difference. Maybe they'll make a good rat drug?

Posted by: mauimedicine | October 24, 2010 11:23 PM | Report abuse

Why not follow the Orszag model in a health court (as noted above), but make the standard of care a rebuttable presumption. The physician -- or nurse, or whoever -- can then have the opportunity to demonstrate why they varied from that standard. This might address the most common concern of physicians that "there is no average patient" and that a specific standard ties their hands and would hurt patients.

Obviously, this doesn't solve all the problems, but maybe it is a start for negotiations on a workable solution.

Also, and very important, a health court should not just be made up of physicians. It should include nurses and others on the healthcare "team" who have frontline responsibilities for patient care. Physicians will complain, of course, that no one knows anything about medicine except for them. They fail to see that "patient-centered" care is not synonymous with "physician-centered" care, and that others on the healthcare team have educated, experiential and legitimate input on how care is delivered.

Posted by: cynthiahaney | October 25, 2010 11:46 AM | Report abuse

While the AMA supports caps on non-economic damages as a proven medical liability reform, we have also expressed support for additional reforms, including exempting physicians from medical liability lawsuits when they follow evidence-based guidelines. Through the AMA-convened Physicians Consortium for Performance Improvement (PCPI) the medical profession is taking the lead in developing evidence-based quality measures for health care conditions. Over the last decade, more than 270 quality measures have been developed through a rigorous, collaborative process, and many more are under development. Many of the PCPI’s measures are currently in use in public and private quality improvement programs, and are easily accessible to all health care professionals at www.physicianconsortium.org. The time has come for meaningful medical liability reforms at the federal level that help reduce unnecessary health care costs and optimize quality – this is one idea that could help jumpstart bipartisan action.

Posted by: AmericanMedicalAssn | October 25, 2010 3:45 PM | Report abuse

"If we can get doctors to stop doing the stuff we don't need, we can control costs without rationing in a way that harms anybody's care." This is a theory that requires a tremendous leap of faith, and one I am unwilling to make. One has to believe that the "concensus" mandate will produce results on average that are better. But consensus is often wrong. And mandated concensus practices seems oxymoronic at best. What this will do is stifle innovative practice.

Not to mention, the safe-haven oexistence of a moronic "concensus mandated" treatment protocol will further stifle innovation or at the verytrue innovation to some nightmarish bureaucratic approval process.

Ira, one of the main reasons malpractice insurance is so expensive has less to do with someone suing over a botched back operation or the removal of the worng kidney than it does the ludicrous awards for minor claims. A woman whose botox imjectins fatten her lips too much should not be able to collect anything, let alone something approaching $1,000,000. And lawyers ought not be able to routinely extort relatively modest settlements of say $10,000 simply because a lawyer can write a threatening letter over a small scar on a 6-year old's knee.

Posted by: buggerianpaisley1 | October 25, 2010 6:01 PM | Report abuse

One way to lower malpractice awards to to disbar doctors who are inept. Years ago, BusinessWeek wrote about this and spoke of a doctor in Nevada, who was still practicing and who was responsible for several multi-million dollars malpractice awards. In this regard the AMA behaves as any other union.
Also most malpractice awards are lessened through mediation after the initial legal judgement.

Posted by: FAFWill | October 25, 2010 9:39 PM | Report abuse

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